Jeffers v. Screen Extras Guild

• Decision Date: 05 November 1951
• Citation: 107 Cal.App.2d 253,237 P.2d 51
• Court: California Court of Appeals Court of Appeals
• Parties: JEFFERS v. SCREEN EXTRAS GUILD, Inc., et al. Civ. 18352.

Page 51

237 P.2d 51

107 Cal.App.2d 253

JEFFERS v. SCREEN EXTRAS GUILD, Inc., et al.

Civ. 18352.

District Court of Appeal, Second District, Division 1, California.

Nov. 5, 1951.

Rehearing Denied Nov. 23, 1951.

Hearing Denied Jan. 3, 1952.

Perry Bertram, Los Angeles, for appellant.

Gilbert, Nissen & Irvin, Robert W. Gilbert, Los Angeles, for respondents.

DRAPEAU, Justice.

Demurrer was sustained to plaintiff's section amended complaint for libel, with leave to amend. Failing to file another amended complaint in time, upon motion of defendants, an order was made dismissing the action under the provisions of Subdivision 3 of Section 581 of the Code of Civil Procedure.

Plaintiff appeals from the order dismissing the action; from the order sustaining the demurrer; and from an order subsequently made, denying his motion under Code of Civil Procedure, section 473 to vacate and set aside the order of dismissal.

Some considerable portion of the briefs has been devoted to the two grounds of appeal last stated. These may be summarily disposed of by stating: First, that an order sustaining or overruling a demurrer, without further action by the court, is not appealable. Harmon v. De Turk, 176 Cal. 758, 169 P. 680; Wood, Curtis & Co. v. Missouri Pac. Ry. Co., 152 Cal. 344, 92 P. 868. Secondly, while the order denying relief under Code of Civil Procedure, Section 473 is appealable, Phelan v. Superior Court, 35 Cal.2d 363, 217 P.2d 951, it is not necessary to pass upon it because the appeal from the order of dismissal must be sustained.

This Court is required to determine whether, as a matter of law, the complaint states a cause of action. The order of dismissal entered on the minutes of the court was a final judgment from which an appeal could be taken. Colby v. Pierce, 15 Cal.App.2d 723, 59 P.2d 1046. And, failing to amend the complaint, plaintiff in effect refused to amend. Saddlemire v. Stockton Savings & Loan Soc., 144 Cal. 650, 79 P. 381; Huffaker v. Decker, 77 Cal.App.2d 383, 175 P.2d 254; Litch v. Kerns, 8 Cal.App. 747, 97 P. 897; 21 Cal.Jur. 125.

The complaint alleges that plaintiff was libeled by statements in a publication of defendants' called 'News Letters to Members.'

Asserted libelous statements in the article are as follows:

'Mike Jeffers, demogogue and would-be dictator, was forced out into the open last week as the leader of the small clique that seeks to destroy Screen Extras Guild. Jeffers personally solicited signatures on an anti-Guild petition and he personally handed out an unsigned, mimeographed, lying attack on the officers and directors of the Guild. The Screen Extras Guild accepts Jeffers' challenge and will continue to expose him for what he is--a would-be dictator who seeks to further his own selfish ambitions at the expense of the extra players; a discredited leader of a discredited union which permitted open shop for extra players and started to flood the extras' ranks with non-union newcomers. That is Jeffers.

'Jeffers yells his head off each time one of his underhanded schemes is exposed as a plot by leaders of the defunct SPU to destroy our American Federation of Labor Guild of extra players. Of course he doesn't like it. He would prefer that the extras would forget all about the terrible things he did to the extras. Jeffers would like the extra players to forget that he was part of the Commie-influenced Conference of Studio Unions which pulled two disastrous jurisdictional strikes in 1945 and 1946. Jeffers would like you to forget that he never did one thing for the good of the extra players, that all he did was to bring about open shop. But the extra players are not going to...